Jury Trial, Volume 9
`
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` UNITED STATES DISTRICT COURT
` EASTERN DISTRICT OF TEXAS
` LUFKIN DIVISION
` PERSONAL AUDIO, LLC | DOCKET 9:09CV111
` |
` | JULY 6, 2011
` VS. |
` | 8:57 A.M.
` |
` APPLE, INC., ET AL | BEAUMONT, TEXAS
`--------------------------------------------------------
` VOLUME 9 OF __, PAGES 2627 THROUGH 2918
` REPORTER'S TRANSCRIPT OF JURY TRIAL
` BEFORE THE HONORABLE RON CLARK
` UNITED STATES DISTRICT JUDGE, AND A JURY
` --------------------------------------------------------
`
`APPEARANCES:
`FOR THE PLAINTIFF: RONALD J. SCHUTZ
` JACOB M. HOLDREITH
` CYRUS A. MORTON
` ROBINS KAPLAN MILLER & CIRESI - MN
` 800 LASALLE AVENUE
` SUITE 2800
` MINNEAPOLIS, MINNESOTA 55402
` ANNIE HUANG
` ROBINS KAPLAN MILLER & CIRESI - NY
` 601 LEXINGTON AVENUE
` SUITE 3400
` NEW YORK, NEW YORK 10022
` LAWRENCE LOUIS GERMER
` GERMER GERTZ
` 550 FANNIN
` SUITE 400
` BEAUMONT, TEXAS 77701
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`Google Inc. v. Personal Audio LLC, IPR2015-00846, Exhibit 2017 Page 1
`
`

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`Jury Trial, Volume 9
`2628
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`2630
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` Plaintiff's Exhibit 1 2734
` Plaintiff's Exhibit 1 2736
`
` Defendant's Exhibit 69 2703
` Defendant's Exhibit 69 2703
` Defendant's Exhibit 69 2708
` Defendant's Exhibit 69 2709
` Defendant's Exhibit 1 2727
` Defendant's Exhibit 1 2730
` Defendant's Exhibit 1 2735
` Defendant's Exhibit 1 2747
` Defendant's Exhibit 449 2761
` Defendant's Exhibit 449 2761
` Defendant's Exhibit 449 2762
` Defendant's Exhibit 42 2791
`
`2631
` (REPORTER'S NOTES PERSONAL AUDIO V. APPLE,
`JURY TRIAL, VOLUME 9, 8:57 A.M., WEDNESDAY, JULY 6, 2011,
`BEAUMONT, TEXAS, HON. RON CLARK PRESIDING.)
` (OPEN COURT, ALL PARTIES PRESENT, JURY NOT
`PRESENT.)
` THE COURT: Is Mr. Elacqua here?
` MR. CORDELL: He is not, your Honor.
` THE COURT: Okay. When he was presenting
`Dr. Wicker, Ms. Mullendore has pointed out that we were
`going to take up the admission of the slides which
`technically are not a Rule 1006 summary but which I've
`already said that in this particular case I was going to
`let both sides get in with an appropriate instruction to
`the jury.
` And, so, the issue I wanted to be sure of is
`that -- since I don't think it has been done -- exactly
`which ones that we're talking about so that we can -- I
`don't think there's much disagreement among counsel, but
`it is important that we know which ones we have.
` MR. HOLDREITH: And, your Honor, there are
`some very specific ones that counsel offered that we
`think are the ones that go back to the jury room. It's
`just a handful --
` THE COURT: I just wanted to identify those
`because we were going through last night which ones they
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`FOR THE DEFENDANTS: RUFFIN B. CORDELL
` FISH & RICHARDSON - WASHINGTON DC
` 1425 K STREET NW
` SUITE 1100
` WASHINGTON, DC 20005
` GARLAND T. STEPHENS
` BENJAMIN C. ELACQUA
` FISH & RICHARDSON
` 1221 MCKINNEY
` 28TH FLOOR
` HOUSTON, TEXAS 77010
`
` KELLY C. HUNSAKER
` FISH & RICHARDSON
` 500 ARGUELLO STREET
` SUITE 500
` REDWOOD CITY, CALIFORNIA 94063
`
` JUSTIN BARNES
` FISH & RICHARDSON
` 12390 EL CAMINO REAL
` SAN DIEGO, CALIFORNIA 92130
` J. THAD HEARTFIELD
` THE HEARTFIELD LAW FIRM
` 2195 DOWLEN ROAD
` BEAUMONT, TEXAS 77706
`
`COURT REPORTER: CHRISTINA L. BICKHAM, CRR, RMR
` FEDERAL OFFICIAL REPORTER
` 300 WILLOW, SUITE 221
` BEAUMONT, TEXAS 77701
`
` PROCEEDINGS REPORTED USING COMPUTERIZED STENOTYPE;
` TRANSCRIPT PRODUCED VIA COMPUTER-AIDED TRANSCRIPTION.
`
`2629
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` INDEX
` PAGE
` DIRECT EXAMINATION OF KEVIN ALMEROTH 2636
` CROSS-EXAMINATION OF KEVIN ALMEROTH 2709
`
` PLAINTIFF RESTS 2767
` DEFENDANT RESTS AND CLOSES 2767
` PLAINTIFF RESTS AND CLOSES 2768
` CONCORDANCE INDEX 2883
`
` INDEX OF EXHIBITS
` Plaintiff's Exhibit 706 2665
` Plaintiff's Exhibit 706 2690
` Plaintiff's Exhibit 203 2692
` Plaintiff's Exhibit 204 2692
` Plaintiff's Exhibit 200 2692
` Plaintiff's Exhibit 201 2693
` Plaintiff's Exhibit 201 2693
` Plaintiff's Exhibit 200 2693
` Plaintiff's Exhibit 201 2693
` Plaintiff's Exhibit 200 2694
` 203 and 204 2694
` Plaintiff's Exhibit 201 2696
` Plaintiff's Exhibit 1 2723
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`2 (Pages 2628 to 2631)
`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Google Inc. v. Personal Audio LLC, IPR2015-00846, Exhibit 2017 Page 2
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`were on each side; and we've located, we think,
`Dr. Almeroth's. We just need to be sure which ones they
`are.
` Maybe counsel have already talked about it and
`you can just give me which ones they are.
` MR. CORDELL: Your Honor, I have an idea; but
`if I could --
` THE COURT: Okay.
` MR. CORDELL: -- have until the next break to
`confer with --
` THE COURT: Oh, sure. No, we have time. We
`just need to bring it up. I don't want at the end, when
`the jury is waiting for us, to start having that
`argument. We've got basically all of today to figure
`that out.
` All right. Let's just be sure we don't forget
`that because, otherwise, tomorrow morning we're suddenly
`scrambling around.
` MR. CORDELL: I appreciate that, your Honor.
`Thank you.
` THE COURT: Okay. Is the jury out there?
`Let's bring them on in, please.
` Fortunately Ms. Mullendore is very thorough,
`picked up on that and reminded me of that.
` MR. CORDELL: And me as well, your Honor.
`2633
`
`Thank you.
` (The jury enters the courtroom, 9:01 a.m.)
` THE COURT: Good morning, ladies and
`gentlemen. Welcome back. We are now continuing on. The
`defendant has rested its case-in-chief and plaintiff will
`now be allowed some time for rebuttal.
` Go ahead, counsel.
` MR. HOLDREITH: Thank you, your Honor. May I
`make a transition statement?
` THE COURT: You may.
` MR. HOLDREITH: Thank you.
` Ladies and gentlemen, this is the last part of
`the case now. And what's going to happen now is
`Dr. Almeroth will come back; and he will be responding to
`the opinions that Dr. Wicker offered, in particular about
`validity. This is what's called "rebuttal," where
`Dr. Almeroth is allowed to sort of respond to what
`Dr. Wicker said. We won't get to do everything we would
`like to. There are some limits on what we can say and
`where we can respond.
` Primarily we're going to be talking about
`validity of the patents, and that was the discussion
`about the DAD and the Sound Blaster. And what
`Dr. Almeroth will talk about is why the DAD and the Sound
`Blaster do not have everything that's in these patent
`
`Jury Trial, Volume 9
`2632
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`2634
`claims. It's the same analysis as for infringement. You
`have to find everything that's in the patent claim in the
`reference in the DAD or in the Sound Blaster to find that
`these patents are anticipated. And Dr. Almeroth will
`explain his opinion that that is not the case.
` We'll also talk about obviousness, which is
`the idea that, well, if something is missing from the DAD
`or from the Sound Blaster, would it have been obvious to
`combine something else with the DAD or the Sound Blaster
`and put it together and make the invention.
` And Dr. Almeroth will explain the analysis he
`did to look for whether there were any reasons that
`people would have put things together the way that
`Dr. Wicker suggested.
` The other question we'll ask and he'll answer
`is even if you put those things together, you have to
`have everything that's in the invention when you combine
`those things. Dr. Almeroth will explain even if you
`combined the Sound Blaster or the DAD system with some
`other things like CD players, you still wouldn't have
`everything that's in those claims. That will be the main
`part of his testimony.
` He'll talk about something called "secondary
`considerations of nonobviousness." That's a legal test
`where he can look at whether the evidence about how the
`2635
`market really behaved shows that it would not have been
`obvious to combine things, in particular because before
`the patent and even for some time after the patent,
`nobody was combining things to make a player that is like
`the one in the claims. So, it wasn't obvious to people
`working in the industry.
` Eventually everyone in the industry started
`doing it and making players with playlists that are
`navigable, that you could receive from outside the
`player, and that's called "industry acceptance" and
`that's another secondary consideration that Dr. Almeroth
`will explain. That's evidence that this is something
`people wanted and liked; and if it had been obvious, the
`industry would have done it sooner because there was a
`demand for it and a need for it.
` Finally, we may get to talk a little bit about
`the infringement case and Dr. Almeroth's disagreements
`with some of what Dr. Wicker said and we may be able to
`do some of that but to the extent there are limits on
`that, that's just the process and I'll hope that you
`remember what Dr. Almeroth said in his original
`testimony.
` So, it's a great privilege to present the
`technical case to you. This is the last thing I get to
`do in the case. We really appreciate the careful
`3 (Pages 2632 to 2635)
`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Google Inc. v. Personal Audio LLC, IPR2015-00846, Exhibit 2017 Page 3
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`Jury Trial, Volume 9
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`2638
`
`attention you-all have obviously been paying. Thank you
`for that. And with that, we'll try to make it as focused
`and as concise as possible to get you through this last
`part of the case. Thank you.
` THE COURT: You remember, of course, you're
`still under oath.
` THE WITNESS: Yes, sir.
` THE COURT: Go ahead.
` DIRECT EXAMINATION OF KEVIN ALMEROTH
` CALLED IN REBUTTAL ON BEHALF OF THE PLAINTIFF
`BY MR. HOLDREITH:
`Q. Good morning, Dr. Almeroth.
`A. Good morning.
`Q. I want to just start by very briefly asking you:
`Have you carefully considered the testimony and evidence
`that Apple put on regarding infringement?
`A. Yes, I have.
`Q. And does anything you heard or saw that Apple put
`on change your opinion about infringement in this case?
`A. There was nothing that Apple presented that
`changes my opinions in this case with respect to
`infringement.
`Q. And does it remain your conclusion that the iPods
`infringe the claims as you explained previously?
`A. Yes. That's correct.
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`obviousness or anticipation?
`A. It was my conclusion after reviewing the
`demonstration and the system, as well as the DAD manual,
`that both of those are missing key limitations from the
`asserted claims; and, therefore, the claims are still
`valid, even considering those systems and the manual.
`Q. And are you prepared to explain that conclusion?
`A. Yes.
`Q. Let's do that in a moment, but I want to ask you
`about the Sound Blaster. Did you consider the Sound
`Blaster manual and the testimony about it?
`A. I did.
`Q. Did you also consider the Sound Blaster
`combination that Dr. Wicker proposed?
`A. Yes, I considered that as well.
`Q. Now, do you agree with Dr. Wicker's conclusion
`that the Sound Blaster is not the invention and by itself
`it did not have playlists that it received from outside
`the player?
`A. That part of his opinion I do agree with, that
`there are missing limitations from the Sound Blaster.
`Q. What conclusion did you reach about whether it
`would have been obvious to combine Sound Blaster with
`some other things to arrive at the invention?
`A. For a number of reasons, I found that it would
`
`2637
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`Q. All right. Let me turn now to validity.
`Dr. Almeroth, have you considered the testimony and
`evidence Apple put on regarding validity of the patent
`claims?
`A. Yes, I have.
`Q. And did you, yourself, perform a careful study of
`the claims and of the prior art that Apple talked about
`and arrive at an independent conclusion about validity in
`this case?
`A. Yes, sir, I did.
`Q. And did you use the same care and attention to
`detail when you did your validity study that you used
`when you did your infringement study?
`A. That's correct.
`Q. What conclusion did you reach about the validity
`of the patent claims in this case, Dr. Almeroth?
`A. I concluded that the patents were valid, that the
`asserted claims that have been asserted against these
`products are, in fact, valid.
`Q. And did you consider the DAD manual and the
`demonstration of the DAD system?
`A. I did.
`Q. Now, can you just explain -- we'll go into some
`detail in a minute. But what is your conclusion about
`whether the DAD renders the claims invalid, either by
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`2639
`have not been obvious to combine the Sound Blaster with
`some of the other prior art that Dr. Wicker discussed.
`And I further concluded that even if it was possible to
`combine those things and there was a motivation to
`combine, that those combinations would still be missing
`key limitations from the asserted claims.
`Q. And are you prepared to explain those conclusions?
`A. Yes, sir.
`Q. Okay. We'll return to those in a moment as well.
` Now, did you do a study of something called
`"secondary considerations of nonobviousness"?
`A. Yes, I did.
`Q. And is that a study where you're looking for
`evidence that, in fact, it would not have been obvious to
`combine things to arrive at the invention in this case?
`A. That's correct.
`Q. And is one of the things you looked at the
`development of the player industry over time?
`A. Yes, that's correct.
`Q. Did you study whether players were using navigable
`playlists that you could get from outside the player
`prior to the patent being filed?
`A. Yes.
`Q. And what did you find?
`A. I found that before the patent was filed, there
`4 (Pages 2636 to 2639)
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`Google Inc. v. Personal Audio LLC, IPR2015-00846, Exhibit 2017 Page 4
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`2642
`no one cared about it, then even though it might have
`been obvious, no one would have done it. But it's the
`fact that no one did it and as soon as it happened, it
`caught fire, those are important considerations for why
`these combinations were not obvious.
`Q. We'll come back to how you reached those
`conclusions and the evidence that you looked at in a
`moment. I would like to talk to you now about the tests
`that you are required to use and that you used for
`studying invalidity. Okay?
`A. Yes, sir.
`Q. Now, is the anticipation analysis in any way
`similar to the infringement analysis?
`A. It is similar.
`Q. And can you explain that?
`A. Certainly. In the infringement analysis that I
`spent a good deal of time going over, you have to show --
`and I had to show -- that every single limitation was
`present in the accused device. Every single limitation
`has to be there.
` Similarly, with anticipation Dr. Wicker has to
`show that every single limitation of the claim is present
`inside either the DAD system or the DAD manual or
`anything else that he would say anticipates the asserted
`claims.
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`Jury Trial, Volume 9
`2640
`were no players with downloadable navigable playlists.
`Q. Did that continue for some period of time after
`the patent was filed?
`A. It did. It continued for a number of years, and
`that's part of what's formed my opinion about why there
`wouldn't have been a motivation to combine some of these
`references. It continued until at least 2000. I didn't
`find any other players, when I went and did my own
`survey, that had these downloadable navigable playlists.
`Q. Does that evidence suggest that it was not obvious
`to make the invention, at least to those people who were
`making players after the patent was filed and who weren't
`doing it with playlists you could receive from outside
`the player?
`A. That's exactly correct. The fact that no one had
`done it for one, two, three, four years after the patent
`application was filed is strong evidence suggesting that
`it wouldn't have been obvious to do some of the
`combinations that Dr. Wicker has identified.
`Q. Did you also study whether the industry eventually
`accepted the idea of being able to download separate
`playlists onto a player and use them as navigable
`playlists on the player?
`A. Yes, I did. The second piece of my analysis was
`to look at what happened around 2000-2001 when players
`2641
`started to include downloadable navigable playlists, and
`what I found is that it was accepted by industry. It
`became a very important part of some of these players,
`and I think we've heard testimony about that in this case
`as well.
`Q. And does the acceptance by the industry allow you
`to conclude that having downloadable navigable playlists,
`or playlists that you receive from outside the player,
`that that's a desirable feature?
`A. Yes, it is. I mean, the fact that once the
`playlists started being included in these devices, that
`it became an important feature and it was seen as an
`important feature, meant that before when it wasn't
`obvious and then suddenly the light bulb went on in about
`2000-2001, it became an important part of these players.
`Q. And does that permit you to conclude that because
`it was desirable, if it had been obvious, then people
`working in this area would have adopted it sooner?
`A. That's correct. If it had been an obvious idea,
`then in '95 or '96, right around the time of the patent,
`everyone would have said, "Oh, well, this is obvious. We
`can just put these things together and have downloadable
`navigable playlists.
` It's important also that it became an
`important feature. If it wasn't an important feature and
`
`2643
`Q. And anticipation, is that the question of whether
`something like the DAD manual is exactly the same as the
`claim?
`A. That's correct.
`Q. And if one thing is missing from the DAD that's in
`the claim, what does that mean?
`A. Then there is no anticipation, and the claim is
`valid.
`Q. Now, what about the level of evidence that's
`needed when you do a validity analysis? Is that similar
`to infringement?
`A. No. That's different.
`Q. And what's the difference?
`A. For infringement it has to be what's called a
`"preponderance of the evidence," which is sometimes
`called "more likely than not." For invalidity it has to
`be clear and convincing evidence, and that's a much
`higher standard.
`Q. So, if you're studying infringement and the
`evidence is just slightly more likely than not that
`everything is there, what does that mean for your
`conclusion?
`A. That infringement is still there. It still takes
`place.
`Q. And for validity?
`5 (Pages 2640 to 2643)
`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Google Inc. v. Personal Audio LLC, IPR2015-00846, Exhibit 2017 Page 5
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`Jury Trial, Volume 9
`2644
`A. No. It has to meet that higher standard. It has
`to be clear, and it has to be convincing evidence.
`Q. All right. Now, compared to the infringement
`analysis and the evidence that was available for
`infringement, did you find in the invalidity evidence
`that there was anything missing to meet this higher
`standard of clear and convincing evidence?
`A. Yes, I -- yes, there was.
`Q. Please explain.
`A. Well, certainly. Just for infringement we looked
`through all of the user manuals, the bill of materials,
`the circuit diagrams, and most importantly the source
`code. One of the things that was completely missing from
`the invalidity case presented by Dr. Wicker was any
`source code whatsoever. There was no analysis of that
`source code.
` And because many of the claim limitations
`require software algorithms, the lack of source code and
`the lack of analysis of the source code to determine that
`those steps of those algorithms existed in the source
`code is, by itself, a reason why there was not clear and
`convincing evidence presented for why these claims are
`invalid.
`Q. All right. Dr. Almeroth, I'd like to now turn
`specifically to the DAD and your analysis of the DAD.
`2645
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`2646
`A. That the DAD does not have those separate skip
`buttons.
`Q. Well, the DAD does let you go to any song that you
`want to go to, right?
`A. That's correct. The way that the DAD works, on
`the list of songs you can select any one of those and
`that becomes the position indicator and then you can hit
`the "next" button and go to that song. But that
`procedure that you have to follow is not what's required
`by these claims and by these limitations.
`Q. Now, did you study this slide that Dr. Wicker
`presented which was Defendant's Demonstrative 647?
`A. Yes, I did.
`Q. And does this have anything to do with what you
`just explained?
`A. Yes, it does. What's described here is the "next"
`button that we've seen before and then there is also a
`position indicator and that position indicator identifies
`the next thing that's to be played. And the way that
`this position indicator is, it represents this
`highlighted bar here (indicating). And the user can
`scroll through this list and select anything in that list
`and that becomes the value that goes into that position
`indicator. And until that point, nothing has actually
`happened to make the player go to that song.
`
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`Okay?
`A. Yes.
`Q. Now, you said you found that there are things
`missing from the DAD that are in the claims; so, I want
`to ask you about that. Okay?
`A. Yes.
`Q. Let me start with the commands to skip in the
`claims, like skipping forward, skipping to the beginning
`of the current track, skipping back. And I will show you
`Demonstrative Exhibit 1013, which is a list of the
`limitations in the '076 patent claim 15.
` Can you explain your conclusions about that?
`A. Certainly. There are a number of limitations here
`that require different kinds of control commands, and
`those control commands are not present inside of the DAD
`system.
` So, for example, "first one of said control
`commands," "a second one of said control commands," "two
`consecutive ones of said second control commands."
` Claim 15 of the '076 patent requires that
`there be different control commands and that those
`control commands relate to skip, which is 14E; skip back,
`14F; and then this double back that we've talked about in
`15A.
`Q. And what did you find about the DAD?
`
`2647
` At that point, then the user hits the "next"
`button; and whatever is identified here as the position
`counter is the thing that becomes the song that's
`currently -- that plays.
`Q. Dr. Almeroth, is there any button other than the
`"next" button that allows you to skip to a different
`song?
`A. No. There's just the one button.
`Q. So, if you want to go forward, what do you have to
`do?
`A. Well, to go forward, you have to select the next
`song and then --
`Q. Which control do you hit?
`A. You hit the "next" button.
`Q. If you want to go back, what do you have to do?
`A. You have to do some things in the menu and then
`hit the "next" button.
`Q. It's a "next" button there, too?
`A. It's always the "next" button. That's the only
`control that's there.
`Q. Did you look for testimony to confirm your
`analysis that the DAD lacks different commands for
`skipping?
`A. Yes, I did.
`Q. And did you find some?
`6 (Pages 2644 to 2647)
`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Google Inc. v. Personal Audio LLC, IPR2015-00846, Exhibit 2017 Page 6
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`

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`Jury Trial, Volume 9
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`A. I did.
`Q. All right. I'm showing you now Plaintiff's
`Demonstrative Exhibit 2004. This is some trial testimony
`from Eugene Novacek. Is this something you considered?
`A. Yes, it is.
`Q. And how does this relate to your opinion?
`A. The questions here are whether or not Mr. Novacek
`is familiar with the CD players and the CD players having
`separate buttons. So, (reading) are you familiar with
`these separate buttons?
` Yes, I am.
` And what these buttons do?
` Yes.
` And he didn't put those buttons into the DAD.
`The way that Mr. Novacek specifically designed the DAD
`was not to have the kinds of buttons like what were on a
`CD player, and he did that on purpose because of what he
`was trying to do with the DAD.
`Q. Could you just read into the record Mr. Novacek's
`answer at page 1960 of the transcript from lines 20 to
`24?
`A. The question was: "But you decided it would be
`best for your product to just have a "next" button and to
`not have a separate 'skip forward' or 'skip back' button
`on the interface, right?
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`Q. Did you look for any testimony that confirms your
`analysis?
`A. Yes, I did.
`Q. Did you find any?
`A. Yes, I did.
`Q. I'm showing you now Plaintiff's Demonstrative
`2005. This is testimony of Mr. Novacek again. Does this
`have something to do with what you just explained?
`A. Yes, it does.
`Q. Can you please explain that?
`A. Sure. The first question on the page here was,
`"In fact, you thought about this; but what you wanted to
`do was implement something like a cart machine, not
`something with CD controls."
` And Mr. Novacek said, "We wanted the
`combination of them. We left out the controls we didn't
`think that would be that needed."
` And then there was a question. (Reading) And
`you looked at how you wanted to implement a cart or a CD
`and there's really no "next" or "skip'"?
` "No, not in the way you're describing it."
` And then there's additional testimony here
`about how the cart machine really only has the "next"
`button. "And on the DAD system, you were trying to
`replace the cart machine with an electronic system?"
`2651
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` "That's correct."
`2
`Q. And did that confirm your analysis?
`3
`A. That's correct, yes.
`4
`Q. Now, is there a reason, Dr. Almeroth, that a
`5
`person designing the DAD, thinking about the DAD would
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`not include these skip buttons?
`7
`A. Yes. There is a reason.
`8
`Q. What is that reason?
`9
`A. The DAD was designed for use in radio and
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`television broadcasting and Mr. Novacek said that the
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`interface was designed after something called a "cart
`12 machine" which is something used in radio stations and
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`that's the idea where you have these set of tracks and as
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`you play on the radio station, you can hit one button and
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`it goes to the next track and you hit a button and it
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`goes to the next track.
`17
` I mean, on the radio there isn't really this
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`concept of rewind to the beginning of the song and start
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`over and play again or you're listening to the radio and
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`the DJ says, "Well, we really like that song. Let's go
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`back and listen to that song again." There is a specific
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`sequence of songs, and that's the sequence of songs that
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`you follow. There isn't a need in the radio station, for
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`example, to do the skip forward, skip back, and those
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`kinds of commands.
`
` It was specifically being designed for
`replacing cart machines in radio stations, and that's
`what Mr. Novacek said.
`Q. And were you indicating testimony at page 1960 to
`1962 of the trial transcript?
`A. Yes, sir.
`Q. All right, Dr. Almeroth. Now, in addition to the
`commands to skip, did you also consider limitations in
`the patent claims that require algorithms for doing the
`skip after somebody presses a command button?
`A. Yes.
`Q. And what did you conclude about that?
`A. Well, first, I concluded that there was no source
`code provided. There was no source code that Dr. Wicker
`analyzed to find the algorithm as it's described in the
`judge's construction; and that was a critical step,
`especially for establishing clear and convincing
`evidence.
` Now, on top of that, the way that the DAD
`system works, you can see the interface and you can
`immediately tell that the algorithm isn't there.
`Normally you would have to look at the source code and
`analyze the algorithm, but there's evidence just in the
`interface that says why that algorithm is not present.
`Q. All right. Let's just make sure we're oriented.
`7 (Pages 2648 to 2651)
`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Google Inc. v. Personal Audio LLC, IPR2015-00846, Exhibit 2017 Page 7
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`Jury Trial, Volume 9
`2652
`I'm showing you now Plaintiff's Demonstrative 1010. Is
`this a summary of the algorithms you're talking about?
`A. Yes, sir, it is. And this is for the different
`commands -- continuous play, go, skip, back, and double
`back. This is what was described in the patent, and the
`Figure 3 portions are what was referred to in the judge's
`claim construction as what was needed for the software
`algorithm.
`Q. Now, to be clear, you just explained why in your
`opinion DAD does not have the different commands, right?
`A. That's correct.
`Q. What is the difference between the commands that
`you just talked about and the algorithms that we're now
`talking about?
`A. Well, first of all, you would need to have the
`commands. So, that by itself is a reason why the DAD
`does not invalidate these claims.
` Second, you need the software algorithm behind
`those commands so that when a user hit the "skip" button
`that isn't there, it would have to then execute this
`algorithm which also isn't there in the DAD.
`Q. So, the command, is that where you're telling the
`machine what you want it to do?
`A. Yes.
`Q. And is the algorithm where the machine has some
`